Hoping — against hope — for a shorter sentence

I led the Protestant service last night at a federal  minimum-security prison facility. About a dozen inmates came out. At one point I asked, “What’s the good news?” I was met with some puzzled looks. I explained that, as Christians, we are people of good news because the gospel is good news. “So,” I asked again, “what’s the good news?”

After a pause, one inmate held up his hand. I invited him to share the good news.

He began with the statement that God is not limited or controlled by the will of humans. “I believe,” he said, “that God can do supernatural things even when there is no reason to believe that anything will change.”

The inmate proceeded to describe how, in response to President Obama’s invitation to nonviolent drug offenders to apply for a commutation of sentence, he had written a letter to the Justice Department. He said he was aware when he did so that he did not technically qualify because (1) he had less than 10 years left on his sentence, and (2) he was not convicted of a drug offense. But, with God, all things are possible, he affirmed.

He went on to note that he received an acknowledgment of his letter, saying what he already knew — that his situation did not qualify under the guidelines of the program. Still, he insisted, “I believe that God is going to shorten my sentence and that I will be leaving here before the end of this year.”

Lacking any faith at all, I replied, “God really has his hands full when it comes to the Justice Department processing these commutation requests.” Later in the service, I tried to recover by praying for justice on behalf of all who are victims of injustice.

Little did I know that I would find on the website of Politico this morning an article by Josh Gerstein, “Obama’s drug-sentencing quagmire,” that pretty much makes my faithless statement last night look too optimistic.

Amid all the protests over the killings of black men and boys by white police officers in recent weeks, one finds imbedded here and there in the news articles statements that crime rates in America are almost at historic lows. Everyone seems to be wondering why.

Some think they know why. It’s because we have about 2 million men incarcerated at the moment. In other words, crime rates will go down when you lock up all the criminals. Or so goes the supposition.

What worries me is that the prison-is-the-solution crowd will, once again, carry the day. And that when and if lots of prison inmates start receiving commutations, fear of rising crime rates will stir the keep-’em-locked-up true believers (especially within the Justice Department) to find a way to end Obama’s grand experiment with commutations.

As if it needs any more challenges than it already has. Just read the Politico article. It left me pretty deflated.

The Smarter Sentencing Act of 2013

To many who have never had a loved one in prison, or who were the victim of a crime, or who assumed that our judicial system delivered pristine justice at all times; a law to reduce sentences for non-violent crimes probably seems unnecessary at best or misguided at worse. But to the many inmates in federal prison, serving lengthy sentences for non-violent crimes, including drug trafficking, such a law is long overdue.

The Smarter Sentencing Act of 2013 was introduced in the United States Senate on July 31, 2013 and referred to the Judiciary Committee. The Judiciary Committee reported it to the entire Senate for consideration on January 30, 2014. The bill, introduced by Richard Durban, Democrat of Illinois, now has 10 cosponsors — 5 Democrats, 4 Republicans and 1 Independent. Among the Republican cosponsors are three of the Senate’s most conservative members — Ted Cruz, Mike Lee, and Rand Paul.

The bill has a fairly good chance of becoming law. If that happens, according to a summary of the law produced by the Library of Congress, the following will result:

  1. It will amend the federal criminal code to direct the court to impose a sentence for specified controlled substance offenses without regard to any statutory minimum sentence if the court finds that the criminal history category for the defendant is not higher than category two (under current law, that the defendant does not have more than one criminal history point).
  2. It will authorize a court that imposed a sentence for a crack cocaine possession or trafficking offense committed before August 3, 2010, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the government, or the court, to impose a reduced sentence as if provisions of the Fair Sentencing Act of 2010 were in effect at the time such offense was committed.
  3. It will amend the Controlled Substances Act (CSA) and the Controlled Substances Import and Export Act (CSIEA) to reduce mandatory minimum sentences for manufacturing, distributing, dispensing, possessing, importing, or exporting specified controlled substances.

 

If it becomes law this bill will not afford very much comfort to prisoners convicted of violent crimes. But it may do something very good for the many (mostly black) men who are serving lengthy sentences for non-violent drug offenses. The bill is especially noteworthy for two things: First, it will remedy the significant disparity in sentences given for crack cocaine possession or trafficking as opposed to sentences for powdered cocaine possession and trafficking. Second, the bill will allow courts to disregard the mandatory minimum sentences if the defendant is not a violent criminal or repeat offender.

The effects of this bill, if it becomes law, will be retroactive. Many who are currently serving sentences could have a reduced sentence imposed and, in some cases, be immediately released from prison.

Aside from its implications for justice, this bill recognizes another reality. The financial cost of the mass incarceration of non-violent drug offenders is staggering. The nation’s prisons are full and, in some cases, overcrowded. The sentencing guidelines that put so many behind razor wire are viewed by many as unaffordable.

In the facilities where I minister, inmates are talking about this bill. When I lead Christian services, we take time to pray for the passage of this bill. For many, that may not seem like much. For those sentenced under the mandatory minimums, the prayers are fervent because the injustice seems so real.

 

The sound of a broken record

Back in vinyl’s heyday, a badly scratched or broken record would always kick the needle back and replay the same segment of the song, over and over again.

News and opinion pieces about draconian mandatory prison sentences for drug convictions are now so universally consistent that they all sound like a broken record. What is being replayed, over and over again, is the tragedy of far too many men and women sent to prison for far too long.

Prosecutors Draw Fire for Sentences Called Harsh” appeared this evening on the website of  The New York Times.

It is a story I have heard too many times already in conversations with too many prisoners.

But I recommend that you read it.

Nelson Mandela, 1918-2013

Nelson Mandela, friend and practitioner of the art of forgiving, died today at the age of 95.

In 1990 Mandela emerged from prison after serving almost three decades of a life sentence to lay the groundwork for the first multiracial democracy in South Africa’s history. Elected as President in 1994, Mandela guided the nation out of the dark night of apartheid’s brutal and racist reign by the moral power of a heart committed to truth, forgiveness and reconciliation.

Jacob Zuma, South Africa’s current President, announced the news in the middle of the night — late afternoon in Pennsylvania. He said, “our nation has lost its greatest son; our people have lost a father.”

With Mandela’s strong support, the South African national legislature passed the Promotion of National Unity and Reconciliation Act in 1995, which established the Truth and Reconciliation Commission (TRC) to help the nation deal with what happened during the apartheid regime. The TRC held public meetings throughout the nation, allowing victims and perpetrators alike the opportunity to tell the truth about what happened. Many blacks told gut wrenching stories of the violence visited on their families and communities. Very few whites confessed to their role in perpetrating the violence. The TRC had the power to grant amnesty to perpetrators of violence, both black and white. The conditions were strict; more blacks than whites were granted amnesty for their crimes during the years of apartheid.

The TRC made a critically important contribution to South Africa’s remarkably peaceful emergence from apartheid and the establishment of a multiracial democracy. As one of the first national efforts at restorative justice, the TRC became a model for other nations’ attempts to emerge from times of ethnic violence.

In our time, Nelson Mandela has been one of justice’s greatest advocates. So, too, will his name rightly be linked to the word “forgiveness.” It was, for him, more than an idea that had merit for individuals. He saw its power to save and shape a nation. The reality of forgiveness in Nelson Mandela seems, to me, to be forever captured in his brilliant and engaging smile. More even than his words, Mandela’s broad and genuine smile speaks to the life-changing power of forgiveness.

 

 

Righting institutionalized injustice

How, I recently wondered, did a nation with such deep roots in western Christianity tolerate the injustice of slavery for as long as it did? To be sure there were powerful economic interests in the continuation of slavery. And maybe there were reasonable questions about the Constitution and states rights. And — though I strain to believe it — perhaps a large number of slaveowners and those who supported slavery honestly believed that it was a “benevolent institution” that benefited black people.

Still, how could it have taken the country over 250 years — and a horrific Civil War — to finally end the injustice of slavery? How did so many Christians fail to grasp the Bible’s clarion call for “liberty to the captives, and the opening of the prison to those who are bound” for so long?

Why, I have also been wondering, is it taking so long for lawmakers and the criminal justice system to put an end to the absurdly long sentences still being routinely handed out to non-violent criminals, especially those committing drug offenses? This question presses me more intensely each time I enter the prison at Canaan to minister.

I have spoken with a federal prosecutor whose work focused entirely on drug traffickers. I understand the explanation that many drug offenders are guilty of far more criminal acts associated with illegal drugs than they are actually prosecuted for. Conversations I have had with inmates who are serving lengthy drug sentences confirm this. Some have readily admitted — to my frequent bemusement, I must add — that while they are currently serving time for something they did not do, they were involved with drugs the day before they were arrested. Just not on the day they did get caught.

Moreover, I work several days a week in a women’s substance abuse rehabilitation center. I see the struggle many of these women are going through as they attempt to reconstruct their lives following years of drug use. But someone had to sell the drugs to them. Did he or she realize the destruction of such actions? Should those who do such things escape punishment? No, there must be consequences. I get that. But is life in prison without parole a truly just punishment?

Yes, you read that last question correctly. I know inmates who received such sentences. And hardly a week passes that a major news organization doesn’t report or opine on how widespread such sentences are.

Today, it was Nicholas D. Kristof on the opinion page of The New York Times. Kristof based his op-ed piece on a recently released report by the American Civil Liberties Union, “A Living Death: Life without Parole for Nonviolent Offenses.

The ACLU identified 3,278 prisoners serving sentences of life without parole (LWOP) for nonviolent drug and property crimes in the Federal Bureau of Prisons and in the nine states that provided statistics. “There may well be more such prisoners in the other states,” says the ACLU. The report states that two-thirds of the LWOP prisoners are in the federal prison system (BOP) and that of these, 96 percent are serving LWOP for drug crimes. Eighteen percent of the federal LWOP prisoners were given LWOP sentences for their first offense.

Across the BOP and the nine states surveyed by the ACLU, almost 80 percent of prisoners serving LWOP were convicted of non-violent drug crimes.

This is part of the legacy of the “war on drugs” that brought about an array of mandatory sentences for drug crimes. The ACLU report stated that “83.4 percent of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory.” This means that judges had no discretion and were bound by the sentencing laws. However, “prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion,” the report goes on to say.

Unsurprisingly, at least to someone like me who has spent a lot of time in a high security federal prison, the majority of prisoners serving LWOP for non-violent crimes are black. The ACLU estimates the figure at 65.4 percent.

During the minutes before and after I lead a formal session at the prison, I sometimes hear inmates talking with one another about their convictions, sentences or appeals. I do not understand some of the legal terminology they use so I ask them to explain. It does not take long to figure out that prosecutors have a great deal of latitude in how they choose to charge a defendant and that this can have enormous consequences if the defendant chooses to go to trial and is found guilty. It is also clear that prosecutors offer defendants deals that involve lower, but still mandatory, sentences if they cooperate. This usually means testifying against someone else in exchange for a lighter sentence. I know prisoners who have been on both ends of that conundrum. They chose not to “rat” and got a stiffer mandatory sentence, or they got ratted on and also got a stiffer mandatory sentence.

Because prisoners are locked up far away from the rest of us, serving what we assume to be appropriate sentences for what we assume to be just convictions, the majority of citizens have no idea what the human toll is in having so many of our fellow citizens in prison (1 of every 104 adults) and a disturbing number of them serving LWOP for non-violent crimes. To be sure, the black community knows the cost. But for most of us, it is a non-problem far, far away.

Forty or so years into the “war on drugs” and the subsequent mass incarceration of 2.2 million men and women, with several thousand of them serving LWOP for their non-violent drug crimes, how much longer is a nation where most citizens are Christian going to tolerate this? It only took ten years for the nation to become weary of the unending war in Afghanistan — less than that in Iraq.

Is it not time for our state and federal legislators to negotiate an end to the war on drugs and seriously revise the sentencing guidelines that have brought such pain, especially in the black community? Ought not a largely Christian citizenry demand this, as indeed did many brave Christians in the 1850s when so many were hopelessly enslaved?

An eye-opening trip to Germany and the Netherlands

In February 2013, delegations from Colorado, Georgia and Pennsylvania traveled to Germany and the Netherlands to tour prison facilities, speak with corrections officials and interact with inmates. The delegations consisted of “criminal justice stakeholders” from each state — men and women involved in various areas of the criminal justice systems of their respective states. The trip was funded by the Prison Law Office and organized by the Vera Institute of Justice.

And boy was it eye-opening!

The differences in the goals and practices of criminal justice between western Europe and the United States are startling, as the members of the three delegations quickly discovered. “The German and Dutch systems are both organized around the central tenants of resocialization and rehabilitation,” according to Vera’s report on the trip, “Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States.” As the Vera report notes, “This is in contrast to the corrections system in the U.S., where incapacitation and retribution are central and where rehabilitative aims remain secondary (at least in practice if not in policy).”

So how are the differing goals and practices working out? With its emphasis on mass incarceration, the state prison population in the U.S. grew by 705 percent in the past 40 years, from 175,000 state inmates in 1972 to 1.4 million in 2012. When the prison populations of the Federal Bureau of Prisons and local city and county jails are added, the total rises to 2.2 million. This has led to an incarceration rate in the U.S. of 716 per 100,000 residents (one of every 104 American adults) and to state corrections expenditures of $53.5 billion in fiscal year 2012. And these figures do not include the federal prison system or city and county jails.

By contrast, the incarceration rate in Germany is only 79 per 100,000 residents. In the Netherlands it is 82 per 100,000 residents.

What accounts for these extreme differences? In the U.S. 70 percent of convicted offenders receive an active prison sentence. The average sentence is three years. In the Netherlands, only 10 percent of convicted criminals receive an active prison sentence; in Germany, the rate is even lower — six percent.

So what are the Dutch and the Germans doing that the U.S. is not doing? Both European countries have a menu of options that are far more likely to be invoked than an active prison sentence. In Germany and the Netherlands prosecutors “have broad power to divert offenders away from prosecution” toward penalties such as “fines, community service, compensation, driving restrictions, mediation, forfeiture, or confiscation of assets obtained by or used in the conduct in question.” This kind of “diversion” on the part of prosecutors, agreed to by the accused, avoids a criminal prosecution even for crimes that, in the U.S., would be considered felonies.

In Germany and the Netherlands, fines often “serve as a stand-alone — and often preferred — sanction.” In the U.S. fines are more commonly “used as an accessory penalty in combination with other sanctions,” most likely a prison sentence. Germany uses a unique approach, assessing what is called a “day fine.” These are fines that are “imposed in daily units (representing one day incarcerated) and are based on an offender’s personal income.”

Also, in both Germany and the Netherlands, when custodial sentences are given, “a relatively large percentage of these…are suspended.” In the U.S. this would be called “probation.” In both European countries, custodial sentences up to two years are routinely suspended.

The U.S. delegations also found the conditions of those incarcerated in Germany and the Netherlands to be very different from most prisoners in the U.S. From the Vera report: “Participants spoke about how struck they were by the degree to which the conditions of confinement are informed by the emphasis on resocialization and reentry, noting in particular the personal agency with which prisoners were invested in their daily life, the positive interactions between staff and offenders, and the focus on vocational training and education.”

Here are some examples of what the delegations observed: prisoners “wear their own clothes, decorate their own cells and keep their own personal belongings.” Moreover, prisoners “have freedom of movement within the unit or facility, access to self-catering facilities [prepare their own meals], and assist in organizing daily life in the prison.” And most astonishingly, “guards knock before entering cells, and prisoners have keys to their own cells and separate, walled toilets.”

Solitary confinement, a normal practice in state and federal prisons in the U.S., is rarely invoked in Germany or the Netherlands. When used in Europe, it is used only for a brief period of time. In Germany the law forbids solitary confinement for more than four weeks in any year; in the Netherlands, the statute limits it to two weeks in a given year.

It is well-known that drug offenders are the largest single population in prisons in the U.S. — a result of the decades-long “war on drugs.” In Germany and the Netherlands, incarceration for drug offenses is practiced mostly for drug traffickers. Other drug offenders are diverted to programs more suited to helping overcome habitual use. [Drug courts are being created in more and more states in the U.S. as an alternative to prosecution and incarceration. I see this regularly in my work at a residential substance abuse rehabilitation center].

When the trip ended, the U.S. delegations came home and discussed what they saw in Europe. In the section of its report on the “Implications for the United States,” Vera said this: “U.S. Policymakers seeking less crime, fewer victims, and greater safety in their states and counties cannot ignore the growing body of proof that many of the European practices — socialization, cognitive-behavioral interventions, education, life skills, and treatment of mental illness — are far more successful.” Vera identified five strategies U.S. criminal justice stakeholders should consider:

  1. Expand prosecutorial discretion to divert offenders. “Policymakers in the United States wishing to safely lower incarceration rates and the number of people exposed to the negative consequences of criminal justice contact should consider extending diversion options to higher-risk individuals and those with more serious offenses.”
  2. Reduce reliance on incarceration as a first response and expand the use of community-based sanctions. “Policymakers interested in effective corrections should ask whether they are making the best use of the options available to them and explore whether these options — as well as the pool of eligible offenders — can safely expanded to support a shift in emphasis away from institutional to community corrections.”
  3. Adapt the disciplinary structure and expand the menu of sanctions. “While many states provide incentives for program completion and good behavior, these are usually in the future (i.e, reduced incarceration time); corrections systems need more short-term positive reinforcement or incentives to encourage more constructive interactions between the institution, staff and offenders.” [Note: my experience ministering to inmates in the Federal Bureau of Prisons would support this strategy 10o percent. In the BOP there are zero short-term incentives for program completion and good behavior].
  4. Treat young offenders as a special population. “If US. jurisdictions want to salvage the potential of these young adults — as contributing members of communities — then attention must be paid to responding appropriately to their developmental needs, with an emphasis on treatment, education, and social or vocational training.”
  5. Normalize the conditions within prison. “The rationale of normalization is to mitigate the negative effects of incarceration on prisoners and increase chances for successful offender rehabilitation and reintegration.”

The Vera report is copiously footnoted, quite current (October 2013), and only 19 pages in length. The link above will take the reader directly to the online PDF.

For many reasons, the U.S. will not want or be able to do criminal justice and incarceration as they are done in Europe. But a growing chorus of influential voices in the U.S. is beginning to sing the same song: mass incarceration is a failure and our prisons are not preparing inmates for successful reentry to the community. Things need to change. Criminal justice needs to be re-envisoned. Do lawmakers, prosecutors, judges and prison officials have the courage to do this? More importantly, do the citizens have the courage to demand it?

Prison in the press

Hardly a day passes without a major newspaper printing a news or opinion piece about incarceration in the United States. Readers are informed of large racial disparities in America’s prisons, sentencing guidelines that result in life sentences for low-level drug offenses and the debilitating consequences of solitary confinement. I am happy to see the increasing attention to these questions.

I am personally familiar with most of the questions being asked. From my very first experience to my most recent — over a period of four years — the racial disparities are the most obvious. Black men are imprisoned in numbers significantly disproportionate to their numbers in the wider population, with the majority sentenced for drug offenses. In any religious service or class I lead, blacks outnumber any other racial or ethnic group. Why? Because in the prison where I work African-Americans account for the largest percentage of inmates. This is true throughout the prison system of the United States.

Some see the racial disparities as an example of entrenched racism in the criminal justice system. A minority population is deliberately being targeted by law enforcement in ways that the white majority population would never tolerate because it has the power and influence to put it to a stop. Michelle Alexander, in The New Jim Crow: Mass Incarceration in the Age of Colorblindness, presents an articulate argument about this.

Others answer that the greater numbers of African-Americans in prison simply represent the greater levels of criminal activity in black communities. Law enforcement, therefore, acts appropriately when it allocates more of its resources to patrolling those minority communities. Heather MacDonald of the Manhattan Institute has written extensively in defense of law enforcement targeting of high crime minority communities. She has also strongly defended New York City’s “stop and frisk” tactics that are frequently and routinely condemned on the op-ed pages of the New York Times.

According to the Congressional Research Service, about 35 percent of inmates entering federal prison in 2010 were convicted of a drug offense. This is down from a high of almost 45 percent in 2002. The largest increase in the federal prison population is the result of the increasing number of convictions for immigration violations. In 2010 over 30% of inmates entering federal prison did so as a result of an immigration violation.  Federal incarcerations due to violent or property crimes have decreased in the past ten years. Imprisonment for weapons violations has risen from five percent to around 12 percent in the past ten years.

These statistics show up in press reports, especially the statistics of incarceration for drug offenses. They are often linked to the question of race. More blacks are incarcerated for drug offenses than for any other illegal activity.

In addition to many black prisoners, in my work I encounter no small number of white and Hispanic inmates who are serving sentences for drug offenses. Some of the sentences are for more than ten years; some even for decades and a few even for life. Only a small percentage of federal inmates (less than 5 percent) are sentenced for a term of 20 years to life, according to the Congressional Research Service. I am not sure what percentage of inmates with whom I work who are in that category were sentenced to so many years for drug trafficking, but the number seems fairly large. And it cuts across the racial spectrum.

A growing number, within the criminal justice system as well as outside it, are raising questions about the sentencing guidelines that have put so many men (and some women) behind bars for the rest of their lives for relatively low-level drug offenses.  Among them are judges who regret that they have so little discretion in sentencing low-level offenders to draconian sentences. The most frequently voiced condemnation of the criminal justice system I hear among the inmates with whom I work relates to sentencing. Most will admit that they were engaged in illegal drug activity. They ask why they should have to pay for until they are carried out of prison in a body bag.

I see an uptick in the number of news stories and opinion pieces about prisons and incarceration in the papers I read. One expects liberals to write about such things, but I have seen several pieces by conservatives as well. From my perspective as one who works in a prison, this is good. All systems should be routinely questioned and be asked to justify why they exist and why they do what they do in the way they do it. Uncomfortable as this can be, and as uncomfortable as it makes some people feel, better justice will most likely come of it.

“Can Forgiveness Play a Role in Criminal Justice”

This is the headline of an extraordinary article published in last weekend’s New York Times magazine. In it, freelance writer Paul Tullis explores the question of how a restorative approach to criminal justice might work in a case of murder. It is a gripping story centered around the 2010 slaying of Ann Margaret Grosmaire by her boyfriend, Conor McBride, in Tallahassee, Florida. Let me summarize it:

Conor and Ann had dated for several years and were both 19 years old. In the day and a half leading up to the shooting, they had  been quarreling non-stop. The frustration and anger escalated. Finally, Ann gathered her stuff and walked out of the house. Conor followed and she told him she wanted him to die. He returned to the house, loaded his father’s shotgun and placed the barrel under his chin with his finger on the trigger. Ann returned and began pounding on the door. Almost immediately they were hurling their anger at each other once again. She said she wanted to die. He left the room, got the shotgun, returned and found her on her knees. He screamed at her and pulled the trigger as she held up her hands and cried, “No, don’t!”

An hour later, Conor turned himself in at the police station. That night in the hospital, Ann’s father, Andy, stood praying by her bedside. She was on life support and he knew that nothing short of a miracle could bring her back. A practicing Catholic, he was praying and listening “for that first word that may come out” of his daughter’s mouth. He felt her say, “forgive him.” Out loud, he responded, “No way.  It’s impossible.” But as he stood in the room he continued to hear his daughter’s voice: “Forgive him. Forgive him.”

Conor’s parents were away on vacation when the police finally reached them. Conor’s father, Michael, rushed to the hospital even before trying to see his son, who was in jail. When the two fathers faced each other, they embraced. Ann’s father remembered saying, “Thank you for being here, but I might hate you by the end of the week.” But he also knew that the two families were now somehow bound together on a similar jouney.

When Ann was later removed from life support and died, Conor was charged with first-degree murder, which in Florida would result at least in a mandatory life sentence or, possibly, the death penalty. Just before removing her daughter from life support, Ann’s mother, Kate, visited  Conor in jail, carrying a message from Andy: “Tell him that I love him, and I forgive him.” Kate later said, “I wanted to be able to give him the same message. Conor owed us a debt he could never repay. And releasing him from that debt would release us from expecting that anything in this world could satisfy us.”

When Ann’s parents met with the district attorney, he told them that he had wide discretion to depart from the state’s mandatory sentences and could recommend as few as five years for Conor. When he said this he did not know that the Grosmaires did not want Conor to spend the rest of his life in prison for killing their daughter. What they wanted was restorative justice.

At this point, Paul Tullis describes the difference between retributive justice — punishing wrongdoers for their crimes — and restorative justice. A lengthy quote is worth including:

Most modern justice systems focus on a crime, a lawbreaker and a punishment. But a concept called “restorative justice” considers harm done and strives for agreement from all concerned — the victims, the offender and the community — on making amends. And it allows victims, who often feel shut out of the prosecutorial process, a way to be heard and participate. In this country, restorative justice takes a number of forms, but perhaps the most prominent is restorative-justice diversion. There are not many of these programs — a few exist on the margins of the justice system in communities like Baltimore, Minneapolis and Oakland, Calif. — but, according to a University of Pennsylvania study in 2007, they have been effective at reducing recidivism. Typically, a facilitator meets separately with the accused and the victim, and if both are willing to meet face to face without animosity and the offender is deemed willing and able to complete restitution, then the case shifts out of the adversarial legal system and into a parallel restorative-justice process. All parties — the offender, victim, facilitator and law enforcement — come together in a forum sometimes called a restorative-community conference. Each person speaks, one at a time and without interruption, about the crime and its effects, and the participants come to a consensus about how to repair the harm done.

Tullis continues:

The methods are mostly applied in less serious crimes, like property offenses in which the wrong can be clearly righted — stolen property returned, vandalized material replaced. The processes are designed to be flexible enough to handle violent crime like assault, but they are rarely used in those situations. And no one I spoke to had ever heard of restorative justice applied for anything as serious as murder.

Julie, Conor’s mother, began researching who might be able to help them pursue a restorative approach to justice. They found Sujatha Baliga, a former public defender, who was now the director of a restorative justice project in Oakland, California. When she heard it was a murder case, she tried to explain to Julie that restorative justice had never been tried in a murder case and that she only worked with clients on restorative justice for crimes like burglaries and robberies. “No gun charges, no homicides. No rape,” she explained. When Julie told her that the victim’s family was on board, Baliga was astonished. Within minutes she was talking to Ann’s mother. Baliga finally relented — “I just couldn’t keep saying no.”

Eventually, everyone necessary to the process, including the prosecutor, agreed to participate in a restorative-justice community conference. It was held in a small room at the jail where Conor was incarcerated. Baliga laid out the rules:

Campbell would read the charges and summarize the police and sheriff’s reports; next the Grosmaires would speak; then Conor; then the McBrides; and finally Foley [a Catholic priest], representing the community. No one was to interrupt. Baliga showed a picture of Ann, sticking out her tongue as she looks at the camera. If her parents heard anything Ann wouldn’t like, they would hold up the picture to silence the offending party. Everyone seemed to feel the weight of what was happening. “You could feel her there,” Conor told me.

Tullis describes in agonizing detail what the Grosmaires said about Ann as they tried to represent the kind of person she was and how her death had impacted them. Tullis also relates in horrifying detail Conor’s description of what led up to the moment he killed Ann. He describes the impact of Conor’s words on Ann’s parents. And, finally, Tullis reports what Conor’s father said about his deep sorrow that he owned the gun that Conor used to kill Ann.

When Baliga turns to the Grosmaires and asks what they would like to see in the way of restitution, Ann’s mother, Kate, looks at Conor and replies that he will need “to do the good works of two people because Ann is not here to do hers.” When asked by Baliga what punishment they believed Conor should receive, Kate replies that he should receive at least five years in prison but not more than 15. Ann’s father, Andy, says 10 to 15 years. Conor’s parents concur. Conor himself says that he does not think he should have a say.

The prosecutor declined to state his opinion, saying he wanted to take it under consideration. The Grosmaires were disappointed. They had hoped that a consensus decision about Conor’s sentence might emerge from the conference. Three weeks later the prosecutor offered Conor a 20-year sentence plus 10 years of probation or a 25-year sentence. Conor chose the former.

Months later, Tullis met with the Grosmaires:

The Grosmaires said they didn’t forgive Conor for his sake but for their own. “Everything I feel, I can feel because we forgave Conor,” Kate said. “Because we could forgive, people can say her name. People can think about my daughter, and they don’t have to think, Oh, the murdered girl. I think that when people can’t forgive, they’re stuck. All they can feel is the emotion surrounding that moment. I can be sad, but I don’t have to stay stuck in that moment where this awful thing happened. Because if I do, I may never come out of it. Forgiveness for me was self-preservation.”

Continuing, Tullis writes:

Still, their forgiveness affected Conor, too, and not only in the obvious way of reducing his sentence. “With the Grosmaires’ forgiveness,” he told me, “I could accept the responsibility and not be condemned.” Forgiveness doesn’t make him any less guilty, and it doesn’t absolve him of what he did, but in refusing to become Conor’s enemy, the Grosmaires deprived him of a certain kind of refuge — of feeling abandoned and hated — and placed the reckoning for the crime squarely in his hands. I spoke to Conor for six hours over three days, in a prison administrator’s office at the Liberty Correctional Institution near Tallahassee. At one point he sat with his hands and fingers open in front of him, as if he were holding something. Eyes cast downward, he said, “There are moments when you realize: I am in prison. I am in prison because I killed someone. I am in prison because I killed the girl I loved.”

Anyone wishing to read Tullis’ fine article in full can find it here.

Ending hiring discrimination against ex-offenders

On June 20 the New York Times reported that the Equal Opportunity Employment Commission is stepping up efforts to go after employers who use criminal background checks to illegally discriminate against job applicants with criminal histories.

The long and short of it is that it is illegal for an employer to have a blanket ban on the hiring of anyone with a criminal history. Since the vast majority of employers use background checks as part of their hiring decisions, the E.E.O.C. wants to insure that an employer’s decision not to hire someone with a criminal history does not violate the applicant’s civil rights.

The issue turns on two questions: first, whether a hiring decision involves disparate treatment and, second, whether it involves disparate impact.

Disparate treatment, reports the Times, is fairly clear. It is illegal, for example, “to refuse to hire an African-American with a criminal conviction but hire a similarly situated white person with a comparable conviction.”

“Disparate impact,” says the Times, “is more complicated.” If an employer’s routine hiring practice disproportionately harms a legally protected racial or ethnic group, the practice is illegal even if there is no intention to racially discriminate.

An employer whose hiring policy is to deny employment to all applicants with a criminal history could well run afoul of the law. Why? Because the policy will have a disparately negative impact on blacks and Hispanics. Why? Because minorities are more likely than whites to be arrested and convicted. According to the Department of Justice, a Hispanic man is nearly three times as likely as a white man to be incarcerated, and an African-American man is nearly six times as likely.

This is not because minorities violate drug laws, for example, at a rate higher than whites. In fact, they do not. As the E.E.O.C. put it in 2008: “African-Americans and Hispanics were more likely than whites to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for whites.”

As I have written before, Michelle Alexander, in her recent book The New Jim Crow, strongly affirms that predominantly black neighborhoods are specifically targeted by police for stop and frisk tactics, as well as traffic stops that would simply not be tolerated by the residents of a white neighborhood. The result is the incarceration of large numbers of African-Americans for relatively minor drug offenses.

When they are released and seek employment, many are routinely denied employment because of their criminal conviction. The E.E.O.C. is concerned that at least some of that is a violation of civil rights laws.

According to the Times, employers are concerned about the E.E.O.C.’s stepped-up efforts to enforce the civil rights laws when it comes to the hiring of people with a criminal history. But a lawyer quoted in the article suggests that employers need to have a dialogue with such applicants about the nature of the crime, the time elapsed since the crime and the nature of the job before determining that the applicant should not be hired.

The difficulty ex-cons experience in finding employment is one of the factors contributing to the high rates of recidivism. Employers have a right to be careful in their hiring procedures. Blanket bans on the hiring of people with a criminal history exceeds reasonable care. We need to see less of it.

Incarceration and justice

“Putting the rapist in prison is not justice.”

The man saying these words is a participant in my classes on forgiving at the high security penitentiary at USP Canaan. He was responding to my suggestion that a rape victim who forgives her assailant could also appropriately desire that he face justice for the crime. It is a point I make during these classes and one I personally affirm: when we forgive we do not have to give up on justice. In the example under consideration, justice for the rapist and, perhaps, for his victim would be his incarceration.

The class member who disagreed was quickly joined by at least half a dozen other inmates, none of whom thought the imprisonment of a rapist was justice for the victim or the offender. My astonished look signaled that I needed an explanation.

Summarized, their point was this: A prison like Canaan and most others in the country offer a much-too-easy life for someone who has done a serious wrong. Inmates receive three meals a day, a place to sleep, educational opportunities, work for pay, visits by family, and no demands other than compliance with the rules. For someone who assaults, rapes and injures a female, prison is nowhere near the level of punishment he deserves or the justice to which the victim is entitled.

“So,” I asked, “what would justice look like?”

Here I will quote the answer because it was indeed unforgettable: “The woman’s brother or father should murder the rapist. He needs to be permanently removed so that he will never again injure a woman.”

Yet another fresh insight into the thinking of the men to whom I am taking a message about forgiving. In this case, however, part of the underlying sentiment voiced by several of the inmates is the inherent injustice of their own incarceration for drug offenses. (No one convicted of a non-drug related offenses spoke up to offer an opinion about the justice or injustice of his sentence). This is certainly not a new message; I have heard it often from inmates who are serving unbelievably lengthy sentences (including life) for drug offenses. And, yes, most of them are men of color.

In an earlier post or two I have referenced Michelle Alexander’s recent book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander cites depressing statistics about the arrest and incarceration of young black men for drug possession and the life-long impact of having a felony drug conviction. Black men, Alexander affirms, are deliberately targeted by police for “stop and frisk” encounters and arrested at extraordinarily higher rates than whites for drug possession even though minorities are no more likely than whites to possess or use drugs. Alexander sees a sinister racism at work — a new version of the old Jim Crow efforts by whites to control and disenfranchise blacks. (Heather Mac Donald, a John M. Olin Fellow at the Manhattan Institute, takes severe exception to such a thesis, arguing that high arrest rates and drug convictions among black American men in no way suggest racist policing or criminal justice. Rather, they indicate the disproportionate criminal activity taking place within black communities. You can read her point of view here).

Without believing that Michelle Alexander got it completely right, I am in sympathy with her thesis, and I therefore do not assume that every black or Hispanic inmate I meet who was convicted on a drug possession charge should necessarily be in prison or be serving a lengthy sentence. This does not affect the way I teach nor prompt me to take up the cause of reforming the justice system. But it does prompt me to think about what other means might lead us to the ends that justice would require.

On May 28 the New York Times published a story by Adam Liptak about federal Judge John Gleeson in Brooklyn. A former federal prosecutor, Judge Gleeson led the team that got a conviction of Mafia boss John Gotti. From the other side of the judge’s bench, Gleeson is now troubled by how the Justice Department handles small-time drug offenders. The law permits a prosecutor to call for a mandatory minimum sentence based on the amount of cocaine in the possession of the person arrested.

Judge Gleeson was required by the law to sentence “a young, small-time street-level drug dealer’s assistant” to a mandatory five-year sentence because he was caught with just over 28 grams of cocaine. (That’s equal to about 1/10 of an ounce). The law behind such sentences assumes (rightly or wrongly) that the amount of drugs in one’s possession indicates whether the offender has a “leadership role” in the criminal drug activity.

Liptak’s article points out that 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence (in the year ending this past September) even though only 5 percent of them “led or managed a drug business.” Liptak also reports that prosecutors use the threat of a mandatory minimum sentence to get guilty pleas and thus avoid a trial. I also know from talking with inmates that prosecutors use the threat of a mandatory minimum sentence to secure an offender’s testimony against another drug offender. (One inmate I know refused to testify in exchange for a 20-year sentence, went to trial, was convicted and received a life sentence).

Let’s return now to the men in my class on forgiving who seem to think that a prison sentence for rape is not justice. On the one hand, those of them serving time for a drug conviction believe their own incarceration is not justice. On the other hand, they see prison life as too easy and therefore inappropriate for a rapist. One gets the impression that prisoners quickly come to the conclusion that prison is an injustice for just about everyone.

My response was this: “That very much depends on which side of the prison wall you are living. I can assure you that most everyone on my side of the wall sees this much differently than you do. Most of us do not think that rapists should be murdered or executed; almost all of us believe they should be sentenced fairly for their crime. At least then, we won’t worry about the rapist claiming another victim.”

One of the class members then reminded me that since women are serving as prison staff, it is possible the rapist could rape again — in prison. Another argument, no doubt, in favor of the non-incarceration extreme justice some of them advocated.

Finally, back in May the United States Attorney for the Northern District of Illinois, Patrick Fitzgerald, announced his impending resignation. Fitzgerald made a name for himself in two prominent prosecutions. First, he was the Special Prosecutor who investigated and brought charges against Vice-President Dick Cheney’s top lieutenant, Scooter Libby, for perjury and obstruction of justice in the Valerie Plame case. Then, he gained even greater notoriety for his prosecution of Illinois Governor Rod Blagojevich.

According to National Public Radio, Fitzgerald spoke about his prosecutorial victories in this manner: “You did a fair trial, you won, and there’s an empty feeling in your stomach when you realize that someone else is going off to prison. That doesn’t change,” he said. “Imprisonment is just not a good thing. It’s a necessary evil at times, and I use those words meaning both words.” NPR added this: “Fitzgerald says criminals must be locked up but that anyone who thinks prison is a productive use of anyone’s time is deluding themselves.”

Those charged with maintaining law and order have been incarcerating people convicted of crimes for a very long time. So much so that the word “prison” has become a synonym for “criminal justice.” As Fitzgerald said, it surely is, at times, a “necessary evil.” But from the standpoint of one ministering inside a prison, I also agree with his hint that there surely must be more productive ways to deal with criminals and secure justice.